Owner not in possession of property still responsible for planning illegalities

The owner of a scheduled dwelling situated outside the development zone was served with an enforcement notice, making reference to the installation of photovoltaic panels without permit.

Following receipt of the said notice, the dwelling owner lodged an appeal before the Environment and Planning Review Tribunal, claiming that the notice was null and void. In her appeal application (rikors), the dwelling owner submitted that, according to DNO (Development

Notification Order) legislation, there was no need to obtain a planning permit in order to install photo voltaic panels on the roof of a dwelling. Furthermore, appellant maintained that the panels were installed after she had obtained a government grant.

Nevertheless, the Tribunal ruled that in the case of Grade 1 and Grade 2 Scheduled property and sites outside the development boundaries (ODZ), PV panels were not allowed on the roof of the penthouses, stair-hoods and washrooms ‘if the negative visual impact of such services is considered to be excessive.’ Consequently, appellant was wrong to assert that for the installation of PV panels, no permission was required.

On the contrary, appellant was expected to submit a request to the Planning Authority for it to establish whether the resulting visual impact was ‘excessive’.

In other words, a permit would only be issued if the Authority is convinced that the visual impact was not excessive. In the absence of such permit, the installation of panels on Grade 1 and Grade 2 Scheduled property is considered in breach of Maltese planning legislation.
Aggrieved by the Tribunal’s decision, plaintiff submitted an appeal before the Court of Appeal, insisting that the Tribunal’s decision should be revoked on the following grounds:

1. The Tribunal had failed to prove that she owned the property in question;
2. The property in question was in possession of a third party.

In its ruling, the Court observed that plaintiff had pointed out that the dwelling was in possession of a third party. At no point during the proceedings, however, had plaintiff demonstrated that she was not the owner of the dwelling.

The Court reminded that according to law, the Executive Council may serve an enforcement notice on both the owner or occupier of any land, requiring ‘any existing use or activity or any works to be discontinued or any building, plant, equipment or other thing whatsoever to be removed from any land, or requiring both such discontinuance and removal.’

Against this background, it was irrelevant whether the illegalities were committed by third parties since a property owner would be held responsible nonetheless.

The Court, however, went to observe that plaintiff was not prevented to institute separate proceedings against the ‘third party offender’, demanding compensation should it transpire that the latter was at fault. On this basis, the appeal was dismissed.